In the Matter of Implementation of Section 25of the Cable Television Consumer Protection and Competition Act of 1992,Direct Broadcast Satellite Public Interest Obligations, MM Docket No. 93-25

My disagreement with the majority centers on the following sentence in Section 335(b)(3):
"The provider of direct broadcast satellite service shall not exercise any editorial control over any
video programming provided pursuant to this subsection." The majority believes that this
sentence can be read to give DBS operators complete freedom in selecting and renewing video
programmers to use the set-aside capacity without violating the prohibition on the exercise of any
editorial control over any of the video programming that is shown. I do not.

The majority's position depends upon a basic fiction: that nothing that occurs between a
DBS operator and a programmer amounts to "editorial control" over the actual programming that
is provided to subscribers so long as the programmer formally retains the right to run the
programming of its choice. Thus, according to the majority, a DBS operator could: (1) decide
which programmers to carry based on specific programming line-ups; (2) discuss with
programmers the particular programs that will be carried and when; and (3) terminate a
programmer because it did not like the content of the programmer's offerings. In the majority's
view, none of this would amount to any editorial control by the DBS operator so long as the
programmer is permitted, as a legal matter, to make the final decision about what programming
will be run.

This fiction cannot withstand scrutiny. First, it defies reality to argue that the editorial
slate is somehow "wiped clean" after a carriage agreement is signed. For instance, assume that a
DBS operator is choosing between two qualified children's programmers -- PBS, which carries
Sesame Street, and a start-up children's channel, which carries a similar program called Poppy
Street. If the DBS operator chooses to carry PBS rather than the start-up, it seems self-evident to
me that the operator has exercised some editorial control over whether its subscribers will see
Sesame Street or Poppy Street.

True, under the majority's view PBS could drop Sesame Street from its line-up and the
DBS operator would have no legal recourse to stop them. But such changes will likely be rare.
Many national programming services have established channel line-ups that are relatively stable as
programmers attempt to develop viewer loyalty and brand identity. More importantly, no
programmer will want to antagonize the entity that has sole control over whether its carriage
contract will be renewed by reneging on programming commitments made during the selection
process. Indeed, since the majority has not prescribed any minimum duration for carriage
contracts, a DBS operator could keep programmers on a short leash by only entering into short-term contracts.

But even assuming that a programmer occasionally exercises independent editorial
judgment contrary to the DBS operator's wishes, the majority's scheme would still run afoul of the
statute. The statute does not prohibit DBS operators from exercising complete editorial control
over all of the video programming on the set-aside capacity, but from exercising any editorial control over any such programming. Thus, the statute is violated even if a DBS operator only
exercises the slightest editorial control over a single program on a single channel.

Since, as a practical matter, the DBS operator is bound to have some influence over some
of the programming that is shown, in the end the majority's argument depends upon the
proposition that a programmer's legal right to ignore the DBS operator's wishes is enough to
satisfy the statute even if that right is not exercised. This is like saying that a television network
exercises no editorial control over the programming that viewers see because its affiliates may
have the legal right to preempt any particular show. It also has a certain through-the-looking-glass logic: the party that chooses the programming that subscribers see does not exercise any
editorial control over what subscribers see; the only party exercising editorial control over what
subscribers see is the one that could choose what subscribers see, but does not.

If the majority were serious about its programmer-programming distinction, it would need
to provide far more detailed rules on permissible conduct before, during and after the set-aside
selection process. It is not enough to leave these issues to case-by-case determinations; these are
issues that every DBS operator and every programmer need resolved before they can do business.
On termination issues, alone, for instance, a whole host of issues present themselves. Can a DBS
operator require programmers to sign "at will" contracts and simply terminate a programmer if
they do not like its content? If not, how long do contracts have to run? Six months? A year?
Five years? What are acceptable reasons for non-renewal? Can it be based on dislike of
particular content, or only on a desire to change from, say, a children's channel to distance
learning?

Instead of the majority's complicated fiction, I would have adopted a simpler approach.
Congress clearly intended that a sliver of the DBS operator's spectrum be set aside for
programming free from the operator's control. In practice, the only way to accomplish that
directive is to prohibit the DBS operator from deciding which programmers will occupy the set-aside capacity. This need not be a burdensome process, nor need it deprive subscribers of the
qualified programming they would find most attractive. I think it would be acceptable under the
statute, for example, for the DBS operator to create a list of qualified programmers seeking
carriage and then to survey its subscribers about the programming they would prefer. A
subscriber survey would be quick and easy to administer, would create an attractive set-aside
package and, most importantly, would remove any question about the DBS operator exercising
editorial control. Although today's Order in no way requires such an approach, neither is it
precluded and it may help insulate a DBS operator from charges of improper editorial influence.